Say “deprivation of liberty safeguards” (or ‘DoLS’ as they commonly known) to people working in health and social care and you will hear plenty of groans of despair. DoLS are legal safeguards for people who need to be in hospital or a care home for treatment or care but lack the mental capacity to consent to being there. These safeguards are designed to ensure that people’s human rights protecting them from unlawful detention are not violated. They are part of the Mental Capacity Act but don’t apply when someone is detained under the Mental Health Act. Critical issue #1 – it’s long been recognised that there is potential for confusion when there are two different systems for detaining people in hospital.

The majority of people who are subject to DoLS are people with dementia and in 2014-15 40,800 people were protected by DoLS. Prior to 2014, where assessments and authorisations for DoLS (carried out by health and social care professionals) were done properly many believed that people benefited from the legal protection they provided but they also often enhanced people’s quality of life because of the spotlight they put on people’s care and support. However, since March 2014 this may have changed because of an enormous increase in numbers of people subject to DoLS , when the Supreme Court ruled that DoLS applied to far more people than had previously been covered. As a result of the ruling the number of people subject to DoLS has increased tenfold, placing staff and systems under enormous pressure – critical issue #2.

But DoLS have come in for a barrage of criticism because legally and bureaucratically they are very complicated, prior to 2014 awareness and understanding of them was low, and it was always unclear what a deprivation of liberty actually was. Critical issue #3. As a result they were heavily criticised, including by a House of Lords Select Committee report in 2014. The Government responded to the criticism by asking the Law Commission to develop proposals for alternative, less complicated safeguards. The Law Commission have just published their proposal which are out for public consultation until the 2 November. The proposals are discussed in a 216 page consultation document. If my understanding is correct, they are proposing four different systems, depending upon the type of care or treatment the person is receiving, including new roles and responsibilities (including changes to the Mental Health Act). That sounds quite complicated to me, even if the intention is to simplify the current system. It also includes some significant proposals to amend the Mental Capacity Act more generally, which go well beyond DoLS. So understanding, legislating and implementing those proposals, and replacing the existing system could be critical issue #4?

Perhaps this could partly be avoided if the current system of DoLS was still not used very much and awareness of it remained low. Even if a new system is complicated its introduction might be an opportunity to raise awareness and improve understanding. But that all changed in 2014 when the Supreme Court made their ruling. The ruling has meant that levels of awareness will have increased significantly among care home and hospital staff, as well as supported housing staff (who are also affected by the Supreme Court ruling), and among social services staff. The Supreme Court ruling may have created a conveyor belt of assessments and organisations, quite possibly with a loss of quality that this implies, but a conveyor belt that can’t be ignored. So, critical issue #5 – just as people are becoming much more aware of the current system of DoLS it is now likely to be changed.

And of course, if DoLS are replaced by a new system one has to be concerned whether the programme of awareness raising, information and training will be done properly, at a time when health and social care is experiencing enormous funding pressures, disinvestment and cuts. So that could be critical issue #6. Will changing the system prove to be the solution? To date the implementation of DoLS has resulted in a car crash. Let’s just hope that whoever is responsible for what happens next can at least drive the car a bit better.